Observers: O'Malley picks won't shift the balance of court

In second term, more nominations await

Gov. Martin O'Malley will get to nominate at least four appellate judges in the next four years, adding to the 10 jurists he picked so far during his tenure.

And although O'Malley (D) has had an opportunity to reconfigure the composition of the Maryland Court of Appeals and the Maryland Court of Special Appeals, his nominations do not appear to have shifted the ideological balance of the appellate courts, according to several judicial observers.

"He had a chance to replace very conservative judges with more progressive judges, and he didn't go in that direction," said C. Christopher Brown, an attorney for the Baltimore law firm of Brown Goldstein Levy, LLP, who has argued cases before the appellate courts and has analyzed the voting patterns of its judges for about 15 years. "Instead, he has appointed more conservative judges."

William L. Reynolds, a University of Maryland School of Law professor who has tracked state appellate court proceedings for nearly 40 years, said O'Malley has appointed "careful and competent" judges.

"I do not detect any shift in ideology in the court's decisions, and I think the judges think of themselves as not having any ideology at all," Reynolds said.

The Appellate Courts Judicial Nominating Commission last week recommended three finalists to replace Court of Special Appeals Judge Arrie W. Davis, who reached the mandatory retirement age of 70 in July.

Maryland voters approved the mandatory judicial retirement statute in 1932. Once they turn 70, judges can be recalled and are allowed to continue sitting on the bench part-time for up to a third of their former salary so caseloads do not build up when vacancies occur.

O'Malley (D) will pick one of three Baltimore City Circuit Court judges  Audrey J. S. Carrion, Shirley M. Watts and Pamela Janice White  to replace Arrie, who has served on the 13-member intermediate court since 1990.

The governor plans to interview each candidate and choose a successor in the near future, said O'Malley spokesman Christine Hansen. The state Senate must confirm the nomination.

Two judges on the state's highest court will turn 70 during O'Malley's second term, including Chief Judge Robert M. Bell, who has sat on the bench since 1991 and has led the court since 1996. The other is Joseph F. Murphy Jr., the longtime chief judge of the Court of Special Appeals, whom O'Malley elevated to the high court in 2007.

Court of Special Appeals Judge James R. Eyler will turn 70 in July 2012.

With 10 judicial nominations in his first term and more to come, O'Malley already has left a lasting imprint on the bench, Brown said.

"It's all luck how things time out," he said, referring to the large number of nominations made by O'Malley.

In his four years, former Gov. Robert L. Ehrlich Jr. (R) made only one appointment to the Court of Appeals (Judge Clayton Greene Jr.) and two to the Court of Special Appeals (Judges Timothy E. Meredith and Patrick L. Woodward).

Although a two-term governor is likely to exert some influence through judicial nominations, it's unusual to be able to appoint a decided majority on the high court, Reynolds said.

But O'Malley's most important judicial selection will be his choice to replace Bell, who will be 70 in July 2013 and is the court's most liberal jurist, according to Brown.

In addition to Murphy, Sally D. Adkins and Mary Ellen Barbera were tapped by O'Malley for the Court of Appeals in 2008.

O'Malley's three nominations to the Court of Appeals largely have been "no-brainers" who were elevated from the intermediate court, said Byron L. Warnken, a University of Baltimore School of Law professor who has a practice in Towson. "The cream has naturally risen, and he didn't have much work to do on the Court of Appeals."

To replace Murphy as chief judge of the Court of Special Appeals, O'Malley named Peter B. Krauser, who has sat on the court since 2000. He also appointed to the intermediate court Robert A. Zarnoch, Alexander Wright Jr., Albert J. Matricciani Jr. and Kathryn Grill Graeff in 2008, Christopher B. Kehoe in 2009 and Michele D. Hotten in August.